from the jurisdictional-mess dept

Going back to the earliest days of Techdirt, we wrote numerous times about what a jurisdictional mess the internet was for various laws and legal regimes. But, even so, decades later, it's still pretty shocking just how messy Google's dispute over global censorship with Canadian courts has become. Last month, we wrote about a positively terrible decision in the Canadian Supreme Court, which upheld an appeals court and a district court, ruling that a Canadian court could order a site to block access to content on a global basis. The lawsuit itself, brought by a company called Equustek against another company apparently selling knockoff/counterfeit equipment, pulled Google into its orbit when the court ordered Google, as a non-party in the case -- to block access worldwide to sites managed by the defendant in the lawsuit (who never showed up in court).

Google pointed out (quite reasonably) that Canadian courts don't have jurisdiction over the global internet any more than a Chinese or Iranian or Russian court would have jurisdiction across the globe. Over and over again, the Canadian courts more or less ignored the issue, saying, "doesn't matter, block it, this is bad stuff." We've discussed at great length the dangers of such a decision, so we won't rehash it now -- go read the previous posts, if you want to review that argument.

But here's where things get... odd. Most people assumed that this was the end of the road on this case. The Supreme Court in Canada is the top of the chain. There was no appeal. Google could (and probably will, if it hasn't already) petition the Canadian government to clarify the law on this. And it may push for clauses in trade agreements that block this sort of thing as well. Some even argued that Google might be able to make an "ISDS" claim out of this (though, that would be messy...). But, apparently, Google felt it had one more way to crack this nut: it has filed for declaratory relief in the US.

In short, Google is going to a US court and saying, "this ruling in Canada is offensive to our laws and Constitution, and you should block the Canadian courts from enforcing it." This is... fascinating from a legal geek standpoint. We do have the SPEECH Act, which bars foreign judgments being enforced in the US when it would go against the First Amendment, but this is slightly different. Google is arguing that a US court should, at the very least, stop Canada from being able to enforce the blockade in the US, because that violates both the First Amendment and Section 230 of the CDA.

This Court has personal jurisdiction over the Defendants because, inter alia, the Defendants have knowingly engaged in a course of conduct whereby they sought and obtained injunctive orders in the Equustek v. Jack litigation in Canada that are expressly aimed at requiring Google to undertake actions in the United States—specifically, to delist search results in the United States and throughout the world. In November 2012 Equustek served Google with a Notice of Application to the British Columbia court at Google’s offices in Mountain View, California. Equustek thereafter renewed the Application for a delisting injunction on May 13, 2013; sought and obtained a trial court injunction on June 13, 2014; and maintained its position adverse to Google through the Canadian appellate process. The Supreme Court of Canada confirmed in its June 28, 2017 opinion that the Canadian order was intended to require Google to take steps where its search engine is controlled—namely, California.

And here's where things get really interesting. The Canadian Supreme Court ruling argued that the "harm" presented by Google up north was merely "theoretical" rather than real. However, Google wants the US court to rule that such an injunction violates the First Amendment and Section 230 of the CDA... at which point the harm is no longer theoretical because it will have a court ruling showing that the blockade has actually censored speech.

Of course, this may lead to a long fight in the US, which may also lead to many years of appeals and whatnot -- and the end result may be... who the hell knows what? What happens when you have two court systems in two different countries completely at odds with one another, with one claiming sovereignty over actions taken in the other's territory (and everywhere else)? One would think that the US would win out in that situation, but... it's kind of uncharted waters. And that by itself reinforces the very point that Google was trying to make, and which three levels of Canadian courts brushed off as no big deal. Clearly, this is going to be a case worth following, as the question of court jurisdiction on the internet gets more and more... fascinating.

Google does not explain precisely what it means by the term "conspiracy theory." Using the broad and amorphous category of fake news, the aim of the change to Google's search system is to restrict access to alternative web sites, whose coverage and interpretation of events conflict with those of such establishment media outlets as the New York Times and the Washington Post.--- end snip ---

Warning to weenies: from the World Socialist Web Site which "has been targeted by Google's new "evaluation methods.""

Oh, and as always: Google is a business, a legal fiction, which does NOT have Constitutional rights. Businesses appear nowhere in the US Constitution, and FICTIONS cannot possibly have Rights. Hope I've nailed that down enough.

So far as immortal and amoral legal fictions win protections granted by fiends in human form called lawyers, pitiable "natural" persons, YOU LOSE.

Garnishment

Google has agreements with various Canadian banks, credit card processors, etc. to move money in and out of Canada: to collect money from Google Play users and pay to developers. Anyone owed damages/fines by Google as a result of this judgment should be able to apply for garnishment—i.e. any bank that would have sent money to Google would be required to divert it.

Given the number of Google users in the country, this would be a very effective way to collect the fine, regardless of what a US court says. Very messy too...

Re:

It certainly looks interesting for those who want some limits on the power of multinational corporations.

It might end in some voluntary breaking up of those companies. So that Google Canada could say "You can't penalize us; it's Google U.S. that still has the search results, and they're a different company." (As opposed to different branches of the same company.)

Re: In other words, Google is saying it's above ALL laws in ALL nations. That cannot be.

Re: Re: In other words, Google is saying it's above ALL laws in ALL nations. That cannot be.

Google would have stopped IF the court said "Delist this in Canada" as Canada would be enforcing laws in its borders.

Not actually. If the company and its servers are in California, the court would effectively be restricting speech in California (directed at Canadians). The "proper" way to enforce that would be for Canadian Customs to "open" packets from Google at the border and block those that break the law... which sounds a lot like China.

Re: Re: Garnishment

You can't garnish your way to enforcing an injunction...

Why not? Google disobey the injunction, the court finds them in contempt and starts fining them, Google refuse to pay because the USA says they don't have to, so Canada starts taking their money. True, that doesn't mean Google are going to delist the thing worldwide... but if they lose so much income they decide to give in, Canada can say it "enforced" this.

Re: Re: In other words, Google is saying it's above ALL laws in ALL nations. That cannot be.

Of course Google is now going to get those countries involved, Canada just claimed jurisdiction of its laws over the United States, and many other places as well.

The United States has long claimed jurisdiction of its laws over those of the rest of the world, for decades, really. American politicians, business people, and armed forces have long behaved as if other countries' and international laws don't apply to them when they're in those countries.

To wit, an apt example from Paul Slansky 'The Clothes have no Emperor', a diary of 'highlights' of the loopy Reagan administration:
1984-04-09 - One day after his administration announced it will not recognize the World Courts juristdiction over the mining of the Nicaraguan harbors, President Reagan proclaims May 1 as "Law Day USA." Says the President, "Without law, there can be no freedom, only chaos and disorder."

You may have only just noticed this case because now, you're beginning to see what it's like to be another country having to deal with a bully USA court/administration/business-lobby, all the frickin' time.

I'm not saying the Superior Court got this one right; I've read the decision and I'm not ready to dismiss it out of hand. I wish there was another mechanism available to rectify the wrong the Court was trying to adjudicate.

Re: Re: Re: In other words, Google is saying it's above ALL laws in ALL nations. That cannot be.

Yes, but whataboutism isn't an argument, it's a distraction technique.

Yes, it's wrong when a country attempts to enforce its laws inside another country's jurisdiction. That the US has done similar things in the past doesn't mean that any American who condemns it in Canada supports it in America.

I don't see anybody here defending Reagan's actions in Nicaragua. In fact, I don't see anybody else here talking about Reagan's actions in Nicaragua.

Re:

I disagree strongly with the ruling, but I can certainly see your point.

If anyone is going to be the target of something like this better it be a large company with the funds to fight back and hopefully get it overturned, rather than a smaller company that has no choice but to accept the ruling and set the precedent that it's acceptable.

Only Congress is strong enough to defend the Hurst Amendment for Americ

A job for Congress

(I am the AC in the previous Conress header. An overrated bot got away from me.)

We cannot expect private companies like Google to carry the whole burden of defending our free speech and press. At some point, company owners will make the rational business decision that it is cheaper to block American information than to give up foreign markets.

Only Congress has the muscle to make foreign governments back off. Congress could state(1) Any foreign attempt to censor the Internet in America in violation of American law is a hostile act (but we will be reasonably cooperative with "great walls" to block foreigners from American addresses).(2) We hereby give the requisite notice that, all international trade agreements to the contrary, we will immediately retaliate in kind for any economic pressures on American companies to censor American speech. Example: if Canada fines Google $100 million for failing to censor American information, we would strategically choose a Canadian target for a $100 million "fine" to reimburse Google.

Re: Re: Re: Garnishment

I wonder if we could sue Google.ca

On the grounds that allowing search results to find Canada's LGBTQ laws on their government websites and people's personal websites in favor of LGBTQ issues, would violate laws in a number of countries -- Iran, Russia and the UAE to name a few -- and get those delisted.

And then there's the funny part of that -- such a delisting would violate Canada's laws against censoring such viewpoints and government information.

If a court's decision truly is global, then a foreign court could issue orders that would be binding in Canada.

Re: Re: Re: Re: In other words, Google is saying it's above ALL laws in ALL nations. That cannot be.

Yes, it's wrong when a country attempts to enforce its laws inside another country's jurisdiction. That the US has done similar things in the past doesn't mean that any American who condemns it in Canada supports it in America.

Yup, not that I agree with what he did.
Two wrongs don't make a right.

Re:

There are several steps I'm visualising right now that could happen in the future:

- Canada claims actions taken in the U.S. break Canadian counterfeit laws.

- Canada then claims that even although the action happened outside Canada's borders, it is still permissible to prosecute Google because Google ARE within Canadian borders. I.e. even although Canada's democratic laws only hold within Canada, it still means anyone in Canada can be subject to them, hence you can still hold folk in Canada accountable to Canadian law without infringing the sovereignty of another country such as the U.S.

- So... the logical next step for Google is for them not to have any of their employees step foot in Canada. And use as many proxies as they need to keep business going there, such as shell companies and literal proxy servers.

- Canada still claims a Canadian law has been broken by Google, and the only method left to get anyone prosecuted is to send an extradition request to the U.S. to request they deport Google employees to Canada for prosecution.

- Now the issue falls to how both countries agree on extradition treaties (and treaties in general). If it signs a treaty with respect to counterfeit items, both democracies have consent, hence it is now morally acceptable on a treaty/extradition level. However the democratic consent of both nations is required. This is why we can quite rightly shun and laugh at requests from North Korea to send over all critics of the regime within the U.S.

- Though the U.S. would have to decide if the First Amendment survives its confrontation with what Canada and other countries demand in such treaties in cases of free expression, such as hate speech and prior restraint. As the U.S. is unlikely to compromise on the First Amendment we can assume it will be the standard.

- Some may say the U.S.'s First Amendment is actually infringing the sovereignty of <i>Canada</i> at this point as there's no way to enforce Canada's speech provisions. Not true. The other option left would be to get Canada's ISPs to "stop at the border" any unacceptable internet speech "traffic", hence each country correctly has dominion over their turf. No different to customs checks at the border, in fact. But there's a big problem.

- Anyone who's been at an airport knows how long customs checks can take, so try to visualise every packet, every decryption, every stenographic hiding, every coded message of any kind never mind plain message, <i>for every ISP that connects to anything outside of Canada, as even if you were to block all U.S. connections, you can use a third-country to proxy round it</i>. It would be like putting a huge border wall across all of Canada's internet cables as they leave Canadian territory. And every single solitary bit out of the petabytes that is "traded" every day across Canada would have to be vetted. By HUMANS, as we all know as even the most automated deep packet inspectors can't see encrypted traffic. Such a wall would have to make Trump's Mexican border wall look like a row of rice-grains.

- There is no way this is going to happen without THE most isolationist Canada-first approach that is willing to risk Canada's economy with the rest of the world just for the sake of enforcing its CAN (Canadian Area Network) and in turn becoming fully independent generating all its resources from within. Only then can you enforce your sub-section of your speech laws.

- So to conclude, it's interesting to remember how borderless our world is compared to centuries ago. The isolationists of the world such as Trump and Brexiteers still haven't seen how their world is quite gone yet.

- Copyright believers will of course still insist that a border wall can be enforced around every digital copy of their work across the planet. No sane person can possibly say copyright law deserves credit for any money an artist now makes in this age.

Re: Re:

Canada is Correct Legally

Most comments miss the real issue here - jurisdiction. Google was indeed subject to the jurisdiction of the Canadian courts. As such, Canada could order Google to do whatever the court was legally permitted to order under the laws of CANADA. The fact that this required Google to undertake actions outside of Canada is irrelevant.

What this case does show is that while the Internet is global, the judicial system is inherently linked to specific jurisdictions. In several areas treaties were created to deal with similar issues - an example is maritime shipping.

Here Google's only available option is to go from jurisdiction to jurisdiction and obtain court orders that actual prohibit Google from undertaking the action within each specific jurisdiction.

If Canada wants to block something, great, But their laws don't cross their own boarders into other countries own rights. Can you imagine what would happen if Russia and China, and Turkey, and Iran and other country's also wanted world wide block on content their own court rules to block world wide?

Sorry Canada, You don't own the WORLD!!! You sure as hell don't own the world wide internet. The dumb judge can throw out whatever he likes and the rest of the world is free to ignore it as the judge has zero authority over the rest of the world.

Hey Canada, why not just be China and have the Great Firewall of Canada. That's about the best you're going to be able to do.